Capacity. WILLS. or general rules, as each particular case must always depend upon its own individual circumstances. It has, indeed, been said that when the Testamentary fact of lunacy was once established by clear evidence, the fact that the party is restored to as perfect a state of mind as he previously possessed, should be proved by evidence equally clear and satisfactory: (3 Bro. C. C. in a note to the Attorney-General v. Parnther.) But this is not the law now; for in several modern cases the acts of the parties who once laboured under insanity have been held valid, notwithstanding they have not been restored to quite as perfect a state of mind as they had previously enjoyed: (Neill v. Morley, 9 Ves. 378; Hall v. Warren, ib. 605; Ex parte Holyland, 11 Ves. 10; White v. Wilson, 13 Ves. 87; White v. Driver, Phill. 84; Cartwright v. Cartwright ib. 100.) For the memory which the law considers as a sound memory, is where a person has a sufficient understanding to dispose of or manage his property with judgment and discretion, which must be collected from his actions, words, or behaviour at the time. Still it will not be sufficient to show that a lunatic has done an act a man in his senses might have done, as that may happen in many ways; it must be shown that the act proceeded from judgment and deliberation, otherwise the presumption of lunacy continues: (Co. Litt. 246, n. 1.) The evidence ought to go to the state and habits of the lunatic, and not rest merely upon an accidental interview with an individual, an occasional instance of self-possession, or his giving a plain answer to a common question : (Levy v. Lindo, 3 Mer. 85.) It is requisite to show sanity and competence at the time of the act to which the lucid interval refers; for it would be going much too far to infer from circumstances too trivial in themselves to mark that restoration of mind which is requisite to enable a person to manage his affairs, a conclusion so general, as that a person who has been clearly proved insane has so far recovered the use of his reason as to be capable of performing acts which are to be binding upon himself and all persons claiming under him. Infants. How the age calculated. Nor will even soundness and discretion of mind at all times suffice; for although a man have a mind of sufficient soundness and discretion to manage his affairs in general, yet if such a dominion or influence be obtained over him as to prevent his exercising that discretion in making his will, he cannot be considered as having such a disposing mind as will give it effect: (Mountain v. Bennett, 1 Cox, 355.) Infants are expressly exempted out of the statute 34 & 35 Hen. 8; but this incapacity did not extend to bequests of personal estate, which might still have been made by infants although under age, if they had arrived at years of discretion; still, what age was to be so considered does not appear to have been clearly determined. According to the best authorities, it appears to have been agreed that a female may make a will at twelve years of age, and a male at the age of fourteen: (Went. 214; Harg. Co. Litt. 896; Hyde v. Hyde, Gilb. Rep. 74; 2 Bla. Com. 497.) But by the statute 1 Vict. c. 26, no will made by any person under the age of twenty-one years shall be valid; so that all distinction between wills of real and personal estate is now abolished with respect to the age of the parties making them. In reckoning the age of an infant, the day of the birth will be of an infant is reckoned inclusively; thus an infant born on the 14th of February, in the year 1830, will be of age on the 14th day of February twenty-one years afterwards; and since in law there is not any fraction of a day, such person will attain his majority at the first instant of the 14th of February, without any regard to the hour of the day in which he came into existence; and consequently he will be empowered to do any legal act after twelve o'clock of the night of the preceding day: (Herbert v. Torbel, 1 Sid. 162; S. C., Sir T. Raym. 84; Anon. 1 Salk. 44; Sir R. Howard's case, 2 Salk. 625.) An alien is incapable of holding lands, which upon office found will devolve upon the Crown; but so long as the lands remain in his possession, they will retain all their incidental qualities; so that it seems the will of an alien will vest a defeasible title in the devisee, but which he may at any time be deprived of by the Crown: (1 Bla. Com. 472; Shep. Touch, 404; 4 Leon. 84.) Still, an alien friend residing in this country may. make a will of his goods and chattels; a privilege denied to an alien enemy, who, it seems, is precluded from making any testamentary disposition whatever. WILLS. Testamentary Capacity. Aliens. A person attainted of treason is disabled from making any testamen- Traitors and tary disposition either of real or personal estate, he having in fact no felons. property to dispose of, for by the attainder it has, ipso facto, become vested in the Crown. But as there is no forfeiture of lands without attainder, a devise of lands will not be avoided by an act of felo de se, for a felo de se is never attainted as a felon, and consequently a devise of his lands will remain good (Rex v. Wilson, 3 Barn. & Ald. 514); but it is otherwise as to bequests of personal property, which will become forfeited, so that a will must necessarily prove inoperative as to that kind of property: (3 Inst. 55; Swin. 67.) In cases of attainder for petty treason or felony the lands of the con- Petty treason victs formerly escheated to the king or other feudal lord by reason of the and felony. corruption of blood consequent upon the attainder, which thus breaking the chain of descent prevented such lands from descending upon the heir. The devises of such persons were by some considered to be absolutely void, but the better opinion seems to have been that, like the wills of aliens, they are merely voidable (Shep. Touch. 404); and such it seems is still the rule with respect to persons not entitled to the benefit of the statute 54 Geo. 3, c. 145, which has abolished the corruption of blood in all cases of attainder, except for high treason, petty treason, and murder, or for counselling, approving, or abetting those offences. No. I. WILL, DEVISING FREEHOLD ESTATES TO BE SOLD, AND 1. Commencement of will. 2. General devise of freehold estates 3. Habendum to trustees in fee. 5. Power of sale of copyholds. 6. Authority to buy in and make 7. Application of rents and profits of copyholds until sale. 8. Indemnity to purchasers. 9. Trustees to stand possessed of 10. To defray expenses of sale. Commencement of will. Practical observations. 1. THIS IS THE LAST AND ONLY WILL AND TESTAMENT (a) of me (testator), of, [HERE STATE residence and occupation in life.] (a) It was the practice in former times to commence a will with a long introductory preamble, setting out the state of mind and body of the testator, and with a profession of his belief in the Christian religion; and then, after committing his soul to his Maker and his body to be buried, expressing an intent to make a disposition of all his worldly possessions. This formal but superfluous commencement grew gradually into disuse, and is now rarely found in wills prepared by professional men, who are content to confine those instruments simply to the objects they are intended to carry out. A will at the present day, therefore, usually commences in the simple form above set out. Many gentlemen have, however, adopted the plan of commencing with a clause revoking all former wills, instead of placing it at the end as was the more ancient practice; but unless upon the ground of its being a safer plan to insert it in this place than in a separate clause, which the draughtsman may possibly forget to do, there appears no cause for thus reversing the pre-existing order of arrangement, and inserting the clause in its long-established place at the very end of the will. It seems, also, that the mere insertion of the word "only," as in the above clause, will have the same operation as a clause of revocation, and has therefore been introduced into modern precedents of wills, a practice which the author has also thought proper to follow: (see Sweet's Forms of Wills, 429.) WILLS. No. I. 2. I GIVE AND DEVISE unto (trustees) (b) and their heirs, ALL and singular my freehold lands, tenements and hereditaments whatsoever and wheresoever, which I, or any person or Will devising persons in trust for me, is or are seised or entitled to, and whether in possession, reversion, remainder, contingency or expectancy, with their and every of their rights, members and appurtenances. Freehold Estates to be Sold, and Power of Sale of Copyholds. General devise of freehold estates to 3. TO HOLD the same unto and to the use of the said (trustees), the trustees. their heirs and assigns for ever, to the uses, upon the trusts, and Habendum to for the ends, intents and purposes hereinafter expressed (that is to say), trustees in fee. for sale. 4. UPON TRUST that the said (trustees), or the survivor of Upon trust them, his executors or administrators, (c) or other the trustees or trustee for the time being of this my will, do and shall, as soon as conveniently may be after my decease (but as to any estate or estates to which I may be entitled in reversion, not until the same shall respectively fall into possession, unless my said trustees or trustee for the time being shall think a prior sale expedient), to (b) When real estate or other property is given to trustees, it should be limited How the devised to them as joint tenants, and two trustees at least should always be appointed, property should so that in case of the death of either of them, the whole trust estate may survive be limited to to his companion. If the trustees are to be invested with a power of sale, trustees. the power should be extended to the survivor and his representatives, as it has been determined that a power of sale given to several persons by name cannot be exercised by the survivors: (Attorney-General v. Gley, 1 Atk. 356; Townshend v. Wilson, 1 B. & A. 608; Hall v. Dawes, 1 Jac. 129; Bradford v. Balfield, 2 Sim. 264.) (c) It will also in most instances be advisable to limit trusts or powers of sale Propriety of to the executors or administrators of the survivor, and to omit the limitation limiting the to the heirs. This plan presents two obvious advantages. In the first place, if trusts or powers the trust property consists of real and personal estate, and is limited to the of sale to the heirs, executors or administrators of the surviving trustee, in the case of his personal death, the trusts and powers relating to the two kinds of property would become representatives separated, those relating to the real becoming vested in the heir, and those of the surviving relating to the personalty in the executors or administrators. And in the second place, even if the property consisted wholly of real estate, the trusts may become vested in a lunatic or an infant heir, who, although now empowered to convey by direction of the Court of Chancery, cannot be thus authorized without considerable expense being incurred, which, it is almost needless to say, every possible care should be taken to avoid. trustee. Executors, It may be proper to remark here, that executors are not disqualified from though exercising a power of sale contained in a will by renouncing the probate of the renouncing, will and the office of executorship: (Yates v. Crompton, 2 P. Wms. 308; Denne may exercise v. Judge, 11 East, 288.) power of sale. WILLS. No. I. Will devising Freehold Estates to be Power to sell copyholds. make sale or absolutely dispose of all my said, real estates so devised to them as aforesaid. 5. AND I HEREBY FURTHER AUTHORIZE AND EMPOWER my Sold, and Power said trustees or trustee for the time being, at any time or times of Sale of Copyholds. before the expiration of twenty-one years (d) from the decease of the survivor of my said trustees herein named, but, if the same can possibly be so arranged, as soon as conveniently may ibe after my decease, to make sale and absolutely dispose of all my copyhold messuages, lands, tenements and hereditaments, (e) holden of the manor of A——, in the county of S―, with their appurtenances, and all other copyhold or customary messuages, tenements and hereditaments whatsoever and wheresoever, which I, or any other person in trust for me, is or are possessed of or entitled to, and whether in possession, reversion, remainder or expectancy, with their and every of their rights, members and appurtenances. Authority to buy in and make special stipulations. 6. AND I HEREBY DECLARE that my said trustees or trustee for the time being may exercise the trusts and powers of sale of my Perpetuity. Practical observations. (d) The power of sale is restricted to twenty-one years from the testator's death, to prevent the possibility of any questions being raised as to its creating a perpetuity. (e) When any copyholds are intended to be sold, it is generally advisable to give the trustees a mere authority to sell, and not to vest any estate or interest in them separate from the power. By this means, the purchasers, in whose favour the power is to be exercised, will be in under the will, one fine only will be incurred: (Beal v. Shepherd, Cro. Jac. 199; Sulyard v. Preston, 2 Wils. 400.) The legal estate in the meantime will descend on the heir-at-law, who, if he be voluntarily admitted, must pay his own fine, which, however, he may easily avoid by forfeiture, as he takes nothing but a dry legal estate; but as the lord has a right to claim that the proper person shall be admitted, and to seize after three proclamations, the power should be exercised as early as possible, in order to prevent this consequence; and should the lord persist in demanding the admission of the heir, the safer plan will be to get him admitted, as even then the expense of the admittance, and subsequent surrender of one person, will be attended with less expense than if the whole of the trustees were to be admitted, and to make such surrender. It will also be advisable, as in the above form, whenever the heir is of full age, to limit the intermediate rents and profits to him, to be applied by him for the purposes of the will, in which case he will be constituted a trustee for that purpose. Another reason for devising the intermediate profits to the heir, where the trustees are to take a mere authority, is, to prevent their power of disposing of the fee from being made a ground for holding that they are to take the inheritance. |